Deborah Vitale v. St. Louis Envelope Company/Fowler Envelope, Missouri Envelope, LLC

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-075959

Employee: Deborah Vitale

Employer: St. Louis Envelope Company/Fowler Envelope, Missouri Envelope, LLC

Insurer: American Home Assurance Co.

c/o AIG Domestic Claims Inc.

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 4, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John A. Tackes, issued December 4, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $8^{\text {th }}$ day of June 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: June 22, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was moving a table.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: $\ 0.00
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 1,575.00

Employee: Deborah Vitale Injury No.: 07-075959

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 614.45
3. Weekly compensation rate: $\ 409.64 Temporary Total Disability; $\ 376.55 Permanent Partial Disability
4. Method wages computation: Stipulated Agreement

1. Amount of compensation payable: NONE

Unpaid medical expenses:

0 weeks of temporary total disability (or temporary partial disability)

0 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning N/A , for

Claimant's lifetime

1. Second Injury Fund liability: Open

\# weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits

Permanent total disability benefits from Second Injury Fund:

weekly differential () payable by SIF for weeks beginning

and, thereafter, for Claimant's lifetime

TOTAL:

$\ 0.00

1. Future requirements awarded: NONE

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Stephen W. Thurmer.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Deborah Vitale

Dependents: N/A

Employer: St. Louis Envelope Company

Additional Party: N/A

Insurers: Twin City Fire Insurance Company ; and American Home Assurance Co. c/o AIG Domestic Claims Inc.

Hearing Date: August 31, 2009

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JAT

A hearing was held on the above captioned matter was held August 31, 2009 at the Division of Workers' Compensation Office in the St. Louis, Missouri with Administrative Law Judge John Tackes presiding. The court reporter was Lori Sanders CCR. Attorney Stephen Thurmer represented the Claimant. Attorney John Palombi represented the Employer and its insurer Twin City Fire Insurance Company (08-012571); John Dietrich represented the Employer and its insurer American Home Assurance Company c/o AIG (07-075959).

Employer/Insurer is asking for a final award. Claimant is requesting a temporary award for medical treatment, TTD benefits, attorney fees and costs.

All objections not expressly ruled upon in this award are overruled to the extent they conflict with this award.

The parties stipulated to the following:

1. During the relevant periods of time, Claimant was an employee of employer which was operating subject to the provision of the Missouri Workers' Compensation Law;
2. Venue in St. Louis is proper;
3. Notice was given to the employer; and
4. The claim was timely filed.

The parties stipulated to the following:

1. During the relevant periods of time, Claimant was an employee of employer which was operating subject to the provision of the Missouri Workers' Compensation Law;
2. Venue in St. Louis is proper;
3. Notice was given to the employer; and

1. The claim was timely filed.

The parties stipulated the issues to be resolved are as follows:

1. Medical causation;
2. Medical care and future care;
3. Attorney fees and costs of litigation; and
4. Nature and Extent of permanent partial disability

1. Medical causation;
2. Liability for medical treatment; and
3. Nature and Extent of permanent partial disability.

Based on the competent and substantial evidence and my observations of Claimant at trial:

1. Claimant worked at St. Louis Envelope Company for 22 years. On June 22, 2007, while helping move her employer, she sustained a back injury when moving a work station table off of a truck. While attempting to move the table, Claimant felt a pop and immediate pain in her lower back. She continued to work hoping the pain would go away or otherwise resolve on its own. She neither requested nor received medical treatment but the pain persisted and she was sent by Employer to BarnesCare for evaluation. Prior to this incident Claimant had not reported or been treated for low back problems.
2. On June 26, 2007, Claimant was seen at BarnesCare for the incident of June 22, 2007. She complained of low back pain radiating down the right leg. No numbness or tingling was reported and Claimant was prescribed medication and physical therapy. X-rays revealed spurs and degenerative changes to the lumbar spine. She was released to return to work on July 19, 2007 without restrictions. Her final diagnosis was resolved lower back strain and resolved sciatica with no permanency expected.
3. When evaluated at BarnesCare on July 19, 2007, Claimant reported no pain or complaints of low back pain. She was not taking prescription medications and reported doing much better. Her examination was normal and she had full range of motion. Following her release from care Claimant missed no work and had no other medical treatment until January 24, 2008. Claimant's testimony that she continued to have low back and right leg pain after being released from BarnesCare July 19, 2007 is not credible because it is inconsistent with the medical evidence.
4. On January 24, 2008, while at work, Claimant was working with envelopes and labels. It is not clear whether she was bending forward to put labels on boxes or whether she was lifting a box of envelopes. She was unable to straighten up and described the pain as

similar to what she felt when injured in June, 2007. Claimant informed a supervisor of her injury and returned to BarnesCare for evaluation on February 12, 2008.

1. On February 12, 2008, Claimant was evaluated for low back pain. A course of treatment similar to what was followed after the June, 2007 incident was initiated. Medication and physical therapy were again prescribed along with light duty. She was discharged from treatment on February 26, 2008. X-rays revealed degenerative changes. Claimant was diagnosed with radiculopathy of the right leg and strain of the lower back. On February 19, 2008 she reported doing better with some low back pain and no leg pain. She continued working with light duty restrictions and undergoing physical therapy.
2. When evaluated at BarnesCare on February 26, 2008, Claimant reported doing much better and had full range of motion along with a normal examination. Her diagnosis at this point was resolved radiculopathy of the right leg and resolved strain of the lower back. She returned to regular duties without restrictions.
3. On March 10, 2008, Claimant returned to BarnesCare stating that two days after being released from medical care, while on vacation, her lower back pain returned and it got worse after she returned to work. An MRI revealed a mild disc bulge at L4-5 with associated bilateral ligamentous hypertrophic changes which appear to result in early compromise of the dimensions of the spinal canal and slight narrowing of the right intravertebral foramen. Subtle anterior wedge deformities were noted at T12 and L1 which did not appear acute. Claimant was diagnosed with low back strain and told her condition was not work related.
4. On March 20, 2008, after being released from BarnesCare with no further treatment authorized by the Employer, Claimant went on her own to see Dr. Thomas Lee, who examined her and referred her to another doctor for possible epidurals to the lumbar spine. On March 24, 2008, Claimant received a transforaminal epidural steroid injection. She received another on April 9, 2008.
5. A lumbar discography was performed at Pain Management Services on April 23, 2008 which was markedly positive at L4-5 and L5-S1. Claimant was diagnosed by Dr. Coleman with lumbar degenerative disc disease, L4-L5 disc protrusion, and neuroforaminal stenosis. A lumbar spine CT revealed "diffuse disc bulging asymmetric to the right where there may be a focal right lateral annular tear. At this level there is mild facet disease and ligamentous hypertrophy contributing to stenosis.
6. Claimant returned to Dr. Lee for additional treatment. Surgical treatment was discussed on April 29, 2008 including an anterior lumbar interbody fusion with infuse and anterior lumbar plating.
7. On June 12, 2008, a Claim for Income Protection benefits was completed by Dr. Lee who indicated the diagnosis preventing Claimant from working is L4-5 degenerative disc with stenosis. According to Dr. Lee, this condition was not due to her employment; However, approximately two months later in a letter dated August 25, 2008, Dr. Lee again recommended anterior lumbar interbody fusion for the Claimant and referenced "work

related back pain" in the letter. In this letter he indicates that his "results with interbody fusion for work related back pain have been favorable." (emphasis mine). He does not say the Claimant's back pain was work related, only that his results with that type of fusion have been favorable. There is no other indication that he is reversin